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The Regulated Covered Bonds Regulations 2008

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Statutory Instruments

2008 No. 346

Financial services and markets

The Regulated Covered Bonds Regulations 2008

Made

13th February 2008

Laid before Parliament

14th February 2008

Coming into force

6th March 2008

The Treasury are a government department designated for the purposes of section 2(2) of the European Communities Act 1972(1) in relation to—

(a)credit and financial institutions and the taking of deposits or other repayable funds from the public(2); and

(b)measures relating to securities and rights in securities(3).

The Treasury, in exercise of the powers conferred by section 2(2) of that Act, make the following Regulations:

PART 1INTRODUCTION

Citation, commencement and interpretation

1.  (1)  These Regulations may be cited as the Regulated Covered Bonds Regulations 2008 and come into force on 6th March 2008.

(2) In these Regulations—

“the 1986 Act” means the Insolvency Act 1986(4);

“the 2006 Act” means the Companies Act 2006(5);

“the 1989 Order” means the Insolvency (Northern Ireland) Order 1989(6);

“the Act” means the Financial Services and Markets Act 2000(7);

“asset” means any property, right, entitlement or interest;

“asset pool” has the meaning given by regulation 3;

“the Authority” means the Financial Services Authority;

“banking consolidation directive” means Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions(8);

“centre of main interests” has the same meaning as in Article 3(1) of Council Regulation (EC) No 1346/2000 of 29 May 2000 on insolvency proceedings(9);

“connected person” has the meaning given by regulation 5;

“covered bond” means a bond in relation to which the claims attaching to that bond are guaranteed to be paid by an owner from an asset pool it owns;

“eligible property” has the meaning given by regulation 2;

“hedging agreement” means an agreement entered into or asset held as protection against possible financial loss;

“issuer” means a person which issues a covered bond;

“owner” has the meaning given by regulation 4;

“programme” means issues, or series of issues, of covered bonds which have substantially similar terms and are subject to a framework contract or contracts;

“registered office” has the meaning given by section 287 of the Companies Act 1985(10) (registered office) until the coming into force of section 86 of the 2006 Act (a company’s registered office) when it will have the meaning given in that section;

“register of issuers” means the register maintained under regulation 7(1)(a);

“register of regulated covered bonds” means the register maintained under regulation 7(1)(b);

“regulated covered bond” means a covered bond or a programme of covered bonds, as the case may be, which is admitted to the register of regulated covered bonds;

“relevant asset pool” in relation to a regulated covered bond means the asset pool from which the claims attaching to that bond are guaranteed to be paid by the owner of that pool in the event of the failure of the issuer;

“relevant persons” has the meaning given by regulation 27(2);

“the Tribunal” means the Financial Services and Markets Tribunal established under section 132 of the Act (the Financial Services and Markets Tribunal).

(3) Unless otherwise defined, any expression used in these Regulations and in Article 22(4) of directive 85/611/EEC of the Council of 20 December 1985 relating to undertakings for collective investment in transferable securities(11) has the same meaning as in that Article of that Directive.

Eligible property

2.  (1)  In these Regulations “eligible property” means any interest in—

(a)eligible assets specified in and compliant with the requirements contained in paragraph 68 of Annex VI of the banking consolidation directive, provided that—

(i)exposures to a body qualifying for credit quality step 2 on the credit quality assessment scale set out in that Annex shall not be eligible property; and

(ii)senior units, issued by French Fonds Communs de Creances or by equivalent securitisation entities governed by the laws of the United Kingdom or an EEA state, securitising residential real estate or commercial real estate exposures may only be assessed as eligible assets if—

(aa)the residential real estate or commercial real estate exposures secured were originated or acquired by the issuer or a connected person; and

(bb)the senior units have a credit assessment by a nominated external credit assessment institution which is the most favourable category of credit assessment made by that external credit assessment institution;

(b)loans to a registered social landlord or, in Northern Ireland, to a registered housing association where the loans are secured—

(i)over housing accommodation; or

(ii)by rental income from housing accommodation;

(c)loans to a person (“A”) which provides loans directly to a registered social landlord or, in Northern Ireland, to a registered housing association, where the loans to A are secured directly or indirectly—

(i)over housing accommodation; or

(ii)by rental income from housing accommodation;

(d)loans to a project company of a project which is a public-private partnership project where the loans are secured by payments made by a public body with step-in rights;

(e)loans to a person (“B”) which provides loans directly to a project company of a project which is a public-private partnership project where the loans to B are secured directly or indirectly by payments made by a public body with step-in rights.

(2) Eligible property (and any relevant security) must be situated in an EEA state, Switzerland, the United States of America, Japan, Canada, Australia, New Zealand, the Channel Islands or the Isle of Man.

(3) In this regulation—

“the 1996 Act” means the Housing Act 1996(12);

“the 2001 Act” means the Housing (Scotland) Act 2001(13);

“housing accommodation”—

(a)

in England and Wales, has the meaning given by section 63 of the 1996 Act (minor modifications: Part 1);

(b)

in Scotland, has the meaning given by section 111 of the 2001 Act (interpretation); and

(c)

in Northern Ireland, has the meaning given by Article 2 of the Housing (Northern Ireland) Order 1981(14);

“project company” has the meaning given by paragraph 4H of Schedule A1 to the 1986 Act or, in Northern Ireland, paragraph 12 of Schedule A1 to the 1989 Order;

“public body” means a body which exercises public functions;

“public-private partnership project” has the meaning given by paragraph 4I of Schedule A1 to the 1986 Act or, in Northern Ireland, paragraph 13 of Schedule A1 to the 1989 Order;

“registered housing association” means a body registered as a housing association under Chapter II of Part II of the Housing (Northern Ireland) Order 1992(15);

“registered social landlord”—

(a)

in England and Wales, means a body registered as a social landlord under Part 1 of the 1996 Act; and

(b)

in Scotland, means a body registered as a social landlord under Part 3 of the 2001 Act;

“step-in rights” has the meaning given by paragraph 4J of Schedule A1 to the 1986 Act or, in Northern Ireland, paragraph 14 of Schedule A1 to the 1989 Order.

(4) Unless otherwise defined, any expression used in this regulation and the banking consolidation directive has the same meaning as in that directive.

Asset Pool

3.  (1)  Subject to paragraph (2), in these Regulations an “asset pool” comprises the following assets—

(a)sums derived from the issue of regulated covered bonds and lent to the owner in accordance with regulation 16;

(b)eligible property which is acquired by the owner using sums lent to it in accordance with regulation 22;

(c)eligible property transferred to the asset pool by the issuer or a connected person to enable the issuer or owner, as the case may be, to comply with—

(i)the requirements specified in regulation 17(2);

(ii)a direction of the Authority under regulation 30; or

(iii)an order of the court under regulation 33;

(d)eligible property transferred to the asset pool by the issuer or a connected person for the purpose of over collateralisation;

(e)contracts relating to the asset pool or to a regulated covered bond;

(f)eligible property acquired by the owner using sums derived from any of the assets referred to in sub-paragraph (b), (c), (d) or (e);

(g)sums derived from any of the assets referred to in sub-paragraph (b), (c), (d), (e) or (f); and

(h)sums lent by persons (other than the issuer) to the owner to enable it to comply with the requirements specified in regulation 24(1)(a).

(2) Any of the assets referred to in sub-paragraphs (a) to (f) and (h) of paragraph (1) may only form part of an asset pool at any time if they are recorded at that time, pursuant to arrangements made in accordance with regulation 17, 23 or 24, as being in that pool.

(3) In paragraph (1), “over collateralisation” means the provision of additional assets that assist the payment from the relevant asset pool of claims attaching to a regulated covered bond in the event of the failure of the issuer.

Owner

4.  In these Regulations “owner” means a person which —

(a)owns an asset pool; and

(b)issues a guarantee to pay from that asset pool claims attaching to a regulated covered bond in the event of a failure of the issuer of that bond.

Connected person

5.  (1)  In these Regulations “connected person” in relation to an issuer means a person which—

(a)is—

(i)a parent undertaking of the issuer;

(ii)a subsidiary undertaking of the issuer; or

(iii)a subsidiary undertaking of a parent undertaking of the issuer;

(b)has its registered office in the United Kingdom; and

(c)either—

(i)has its centre of main interests in the United Kingdom; or

(ii)is authorised under Part 4 of the Act (permission to carry on regulated activities) to carry on the regulated activity referred to in article 5 (accepting deposits) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001(16).

(2) In paragraph (1) “parent undertaking” and “subsidiary undertaking” have the meanings given by section 1162 of the 2006 Act (parent and subsidiary undertakings).

PART 2THE AUTHORITY

Functions of the Authority

6.  (1)  The Authority is to have the functions conferred on it by these Regulations.

(2) The Authority’s general functions are—

(a)its functions in relation to the giving of guidance under regulation 42; and

(b)its function of determining the general policy and principles by reference to which it performs particular functions under these Regulations.

(3) In discharging its general functions the Authority must have regard to—

(a)the need to preserve investor confidence in, and the desirability of maintaining the good reputation of, the regulated covered bonds sector in the United Kingdom by the issuance of high quality regulated covered bonds;

(b)the international character of financial services and markets and the desirability of maintaining the competitive position of the United Kingdom;

(c)the need to use its resources in the most efficient and economic way;

(d)the principle that a burden or restriction which is imposed on a person, or on the carrying on of an activity, should be proportionate to the benefits, considered in general terms, which are expected to result from the imposition of that burden or restriction;

(e)the need to minimise the adverse effects on competition that may arise from anything done in the discharge of those functions;

(f)the desirability of facilitating competition in relation to regulated covered bonds.

PART 3REGISTRATION

Registers

7.  (1)  The Authority must maintain—

(a)a register of issuers; and

(b)a register of regulated covered bonds.

(2) The Authority must publish the registers in such manner and at such times as it may determine.

Applications for registration

8.  A person who proposes to issue a covered bond or a programme of covered bonds may apply to the Authority, in such manner as the Authority may direct—

(a)for admission to the register of issuers; or

(b)for the covered bond or the programme of covered bonds to be admitted to the register of regulated covered bonds.

Applications for admission to the register of issuers

9.  Subject to regulation 11, the Authority must grant an application under regulation 8(a) if it is satisfied that the applicant—

(a)has its registered office in the United Kingdom;

(b)is authorised under Part 4 of the Act (permission to carry on regulated activities) to carry on the regulated activity referred to in article 5 (accepting deposits) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;

(c)will comply with the requirements imposed upon issuers by or under these Regulations; and

(d)complies with any other requirements imposed by the Authority in relation to the application.

Applications for admission to the register of regulated covered bonds

10.  (1)  The Authority may not entertain an application under regulation 8(b) in respect of a covered bond or programme of covered bonds unless it knows—

(a)the identity of the owner of the relevant asset pool;

(b)the assets intended to be included in that asset pool; and

(c)the arrangements to be made under regulation 17.

(2) The Authority may grant an application under regulation 8(b) if it is satisfied that—

(a)the applicant is an issuer which is admitted to the register of issuers;

(b)the applicant and the owner of the relevant asset pool will comply with the requirements imposed upon them by or under these Regulations; and

(c)the applicant complies with any other requirements imposed by the Authority in relation to the application.

Refusal of applications for registration

11.  An application under regulation 8 may be refused if, for any reason relating to—

(a)in the case of an application under regulation 8(a), the applicant; or

(b)in the case of an application under regulation 8(b), the issuer, the owner of the relevant asset pool or the quality of that asset pool,

the Authority considers that granting it would be detrimental to the interests of investors in regulated covered bonds or to the maintenance of the good reputation of the regulated covered bond sector in the United Kingdom.

Applications: supplementary

12.  (1)  The applicant must provide any information which the Authority requires in connection with an application under regulation 8 in such form, and verified in such manner, as the Authority may direct.

(2) At any time after receiving an application under regulation 8 and before determining it, the Authority may require the applicant to provide such further information as it reasonably considers necessary to enable it to determine the application.

(3) Different directions may be given, or requirements imposed, by the Authority with respect to different applications or categories of application.

Decision on the application

13.  (1)  The Authority must notify the applicant of its decision on an application under regulation 8—

(a)before the end of the period of six months beginning with the date on which the application is received; or

(b)if within that period the Authority has required the applicant to provide further information in connection with the application, before the end of the period of six months beginning with the date on which that information is provided.

(2) The applicant may withdraw its application by giving the Authority written notice at any time before the Authority determines it.

(3) If the Authority decides to grant an application under regulation 8, it must give the applicant written notice of its decision.

(4) If the Authority proposes to refuse an application under regulation 8, it must give the applicant a warning notice.

(5) The Authority must, having considered any representations made in response to the warning notice—

(a)if it decides to refuse the application under regulation 8, give the applicant a decision notice; or

(b)if it grants the application, give the applicant written notice of its decision.

(6) If the Authority decides to refuse an application under regulation 8, the applicant may refer the matter to the Tribunal.

Admission to the registers

14.  (1)  If the Authority decides to grant an application under regulation 8 it must, within seven days of the date on which it gave written notice under regulation 13(3) or (5)(b), admit—

(a)the applicant to the register of issuers; or

(b)the covered bond or the programme of covered bonds to the register of regulated covered bonds.

(2) The Authority may remove a regulated covered bond from the register of regulated covered bonds only after the expiry of the whole period of validity of that bond.

PART 4ISSUERS

Acting without registration

15.  (1)  A person may not issue, or purport to issue, a regulated covered bond unless—

(a)it is admitted to the register of issuers; and

(b)the bond is admitted to the register of regulated covered bonds.

(2) A person which has been removed from the register of issuers may not make any further issue under a programme of covered bonds which has been admitted to the register of regulated covered bonds.

(3) Contravention of the prohibition in paragraph (1) or (2) by a person is a contravention of a requirement imposed on it by these Regulations, but does not—

(a)make any transaction void or unenforceable; or

(b)give rise to any right of action for breach of statutory duty.

Sums derived from the issue of regulated covered bonds

16.  An issuer must lend sums derived from the issue of a regulated covered bond to the owner of the relevant asset pool.

General requirements

17.  (1)  An issuer of a regulated covered bond must enter into arrangements with the owner of the relevant asset pool for the maintenance and administration of that pool.

(2) The arrangements must provide for the following requirements—

(a)a record is kept of each asset in the asset pool;

(b)the asset pool is, during the whole period of validity of the regulated covered bond, capable of covering—

(i)claims attaching to the bond; and

(ii)sums required for the maintenance, administration and winding up of the asset pool;

(c)there is timely payment of claims attaching to the bond to the regulated covered bond holder; and

(d)the asset pool is of sufficient quality to give investors confidence that in the event of the failure of the issuer there will be a low risk of default in the timely payment by the owner of claims attaching to the bond.

(3) This regulation does not apply in the event of the insolvency of the issuer.

Notification requirements

18.  (1)  An issuer must give the Authority such information in respect of—

(a)any regulated covered bond it issues;

(b)any series of covered bonds issued or proposed to be issued under a regulated covered bond;

(c)the assets in the relevant asset pool;

(d)the steps it has taken to comply with regulation 16 or 17;

as the Authority may direct.

(2) The issuer of a regulated covered bond must inform the Authority if at any time any of the requirements specified in regulation 17(2) are not, or are not likely to be, satisfied in respect of the relevant asset pool.

(3) The information required under paragraphs (1) and (2) must be given at such times, in such form and verified in such manner, as the Authority may direct.

Change of issuer

19.  (1)  An issuer of a regulated covered bond may transfer the benefits and obligations accruing to or falling upon it under all contracts relating to the relevant asset pool to another person only if that person has been admitted to the register of issuers.

(2) Where a transfer takes place in accordance with paragraph (1), that person shall be an issuer of that regulated covered bond for the purposes of these Regulations.

Material changes to the regulated covered bond

20.  (1)  Where an issuer of a regulated covered bond proposes to make a material change to the contractual terms of the bond, it must give the Authority such—

(a)notice of the proposed change; and

(b)information in respect of the proposed change;

as the Authority may direct.

(2) The information required under paragraph (1) must be given at such time, in such form and verified in such manner, as the Authority may direct.

(3) If it appears to the Authority that the proposed change will not prevent the issuer and owner of the relevant asset pool from continuing to comply with the requirements imposed on them by or under these Regulations, it must give the issuer written notice of its decision to approve the change before the end of a period of 3 months beginning with the date on which the information required under paragraph (1) is provided.

(4) If it appears to the Authority that the proposed change may prevent the issuer or the owner of the relevant asset pool from complying with the requirements imposed upon them by or under these Regulations, it may decide not to approve the change and give the issuer a decision notice.

(5) If the Authority proposes to give a decision notice under paragraph (4), it must give the issuer a warning notice before the end of a period of 3 months beginning with the date on which the information required under paragraph (1) is provided.

(6) The Authority must, having considered any representations made in response to the warning notice—

(a)if it decides to do so, give a decision notice under paragraph (4); or

(b)if it decides not to give a decision notice, give the issuer a notice of discontinuance and written notice of its decision to approve the change.

(7) If the Authority gives a decision notice under paragraph (4), the issuer may refer the matter to the Tribunal.

(8) The issuer may not make the proposed change before it has received a written notice from the Authority approving the change.

PART 5OWNERS

Prohibition

21.  (1)  A person may not be an owner unless it—

(a)is a company or limited liability partnership; and

(b)has its registered office and centre of main interests in the United Kingdom.

(2) Regulation 15(3) applies to a contravention of the prohibition in paragraph (1) as it applies to a contravention of the prohibition in regulation 15(1) or (2).

(3) In paragraph (1)—

“company” has the meaning given by section 1 of the 2006 Act (companies);

“limited liability partnership” has the meaning given by section 1 of the Limited Liability Partnerships Act 2000 (limited liability partnerships)(17).

Sums derived from the issue of regulated covered bonds

22.  (1)  The owner of the relevant asset pool must—

(a)use all sums lent to it by the issuer of a regulated covered bond to acquire eligible property; and

(b)keep such property in the relevant asset pool.

(2) Until the owner uses the sums referred to in paragraph (1) to acquire eligible property, it must keep such sums in the relevant asset pool.

Requirements relating to the asset pool

23.  (1)  The owner of the relevant asset pool must enter into arrangements with the issuer of a regulated covered bond for the maintenance and administration of the asset pool.

(2) The arrangements must provide for the requirements specified in regulation 17(2).

24.  (1)  On the insolvency of the issuer of a regulated covered bond, the owner of the relevant asset pool must—

(a)make arrangements for the maintenance and administration of the asset pool which provide for the following requirements—

(i)a record is kept of each asset in the asset pool;

(ii)the asset pool is capable of covering—

(aa)claims attaching to the bond; and

(bb)sums required for the maintenance, administration and winding up of the asset pool;

(iii)there is timely payment of claims attaching to the bond to the regulated covered bond holder;

(b)give the Authority such information in respect of—

(i)the composition of the asset pool; and

(ii)the steps it has taken to comply with sub-paragraph (a);

as the Authority may direct; and

(c)inform the Authority if at any time any of the requirements set out in sub-paragraph (a)(ii) or (iii) are not, or are not likely to be, satisfied.

(2) The information required under paragraph (1)(b) and (c) must be given at such times, in such form and verified in such manner, as the Authority may direct.

Change of owner

25.  (1)  Where a regulated covered bond has been issued and the owner of the relevant asset pool proposes to transfer ownership of the asset pool and the benefits and obligations accruing to or falling upon it under all contracts relating to the asset pool to another person, it must make arrangements to give the Authority such—

(a)notice of the proposed change of ownership; and

(b)information in respect of the proposed new owner;

as the Authority may direct.

(2) The information required under paragraph (1) must be given at such time, in such form and verified in such manner, as the Authority may direct.

(3) If it appears to the Authority that the proposed owner will comply with the requirements imposed by arrangements made pursuant to regulation 23 or, as the case may be, 24(1)(a) it must give the owner written notice of its decision to approve the change before the end of a period of 3 months beginning with the date on which the information required under paragraph (1) is provided.

(4) If it appears to the Authority that the proposed owner will be unable to comply with any of those requirements it may decide not to approve the change and give the owner a decision notice.

(5) If the Authority proposes to give a decision notice under paragraph (4), it must give the owner a warning notice before the end of a period of 3 months beginning with the date on which the information required under paragraph (1) is provided.

(6) The Authority must, having considered any representations made in response to the warning notice—

(a)if it decides to do so, give a decision notice under paragraph (4); or

(b)if it decides not to give a decision notice, give the owner a notice of discontinuance and written notice of its decision to approve the change.

(7) If the Authority gives a decision notice under paragraph (4), the owner may refer the matter to the Tribunal.

(8) The owner may not transfer the asset pool to a proposed new owner before it has received a written notice from the Authority approving the change.

Transfer of title

26.  Where an issuer of a regulated covered bond or a connected person holds any interest in an asset in the relevant asset pool on behalf of the owner, a liquidator or administrator appointed to wind up that issuer or connected person must, as soon as reasonably practicable, transfer or assist in the transfer of that interest to the owner.

PART 6PRIORITY OF PAYMENT

Priority in a winding up

27.  (1)  Subject to—

(a)section 115 of the 1986 Act (expenses of voluntary winding up) or, in Northern Ireland, article 100 of the 1989 Order (expenses of voluntary winding up); and

(b)the priority of the expenses of the winding up in a compulsory liquidation;

where an owner is wound up, the claims of relevant persons shall be paid from the relevant asset pool in priority to all other creditors.

(2) “Relevant persons” are—

(a)regulated covered bond holders;

(b)persons providing services for the benefit of those bond holders;

(c)the counter-parties to hedging instruments which are incidental to the maintenance and administration of the asset pool or to the terms of the regulated covered bond; and

(d)persons (other than the issuer) providing a loan to the owner to enable it to satisfy the claims of the persons mentioned in sub-paragraph (a), (b) or (c).

(3) The claims of the persons mentioned in paragraph (2)(b), (c) and (d) may rank equally with, but not in priority to, the claims of the persons mentioned in paragraph (2)(a).

Realisation of a charge

28.  (1)  Subject to regulation 29, if—

(a)any asset comprised in the asset pool is charged as security for claims in priority to any charge over that asset granted to secure the claims of relevant persons; and

(b)the charge which has priority is realised at any time when the owner is not in the course of being wound up;

the proceeds of the realisation of that charge must, after payment of the expenses referred to in regulation 29 and any other expenses relating to that charge, be first applied to satisfy the claims of relevant persons at such time as those claims fall due for payment.

(2) Subject to regulation 29, if—

(a)any asset comprised in the asset pool is charged as security for several claims;

(b)any agreement between the creditors of that charge gives priority to the claims of any person above the claims of the relevant persons; and

(c)that charge is realised at any time when the owner is not in the course of being wound up;

the proceeds of the realisation of that charge must, after payment of the expenses referred to in regulation 29 and any other expenses relating to that charge, be first applied to satisfy the claims of the relevant persons at such time as those claims fall due for payment.

Expenses

29.  (1)  Costs properly incurred by a liquidator, provisional liquidator, administrator, administrative receiver, receiver or manager of the owner in relation to—

(a)persons providing services for the benefit of regulated covered bond holders;

(b)the counter-parties to hedging instruments which are incidental to the maintenance and administration of the asset pool or to the terms of the regulated covered bond; or

(c)persons (other than the issuer) providing a loan to the owner to enable it to meet the claims of regulated covered bond holders or pay costs falling within sub-paragraph (a) or (b);

shall be expenses incurred in a winding up, administration, administrative receivership or receivership of the owner, as the case may be.

(2) Such expenses shall be payable out of—

(a)the proceeds of the realisation of the charge, in the case of a receivership; or

(b)the assets of the owner, in an administration, winding up or provisional liquidation,

and shall rank equally among themselves in priority to all other expenses.

PART 7ENFORCEMENT

Authority’s power to give directions

30.  (1)  If it appears to the Authority that a person has failed, or is likely to fail, to comply with any requirement imposed on it by or under these Regulations, the Authority may direct that person to take specified steps for the purpose of securing its compliance with any such requirement.

(2) If it appears to the Authority that an owner has failed, or is likely to fail, to comply with any requirement imposed on it by or under these Regulations, the Authority may direct the winding up of that person.

(3) A direction under this regulation is enforceable, on the application of the Authority, by an injunction or, in Scotland, by an order for specific performance under section 45 of the Court of Session Act 1988(18)(restoration of possession and specific performance).

Removal from the register

31.  (1)  The Authority may remove an issuer from the register of issuers—

(a)at the issuer’s request;

(b)with its consent; or

(c)if it appears to the Authority that the issuer is failing, or has failed, to comply with any requirement imposed on it by or under these Regulations.

(2) But these Regulations (apart from regulation 15(2)) apply to a person which has been removed from the register of issuers as if it were still a person which is admitted to the register.

Directions and revocation: procedure

32.  (1)  Before—

(a)giving a direction under regulation 30; or

(b)removing an issuer from the register of issuers under regulation 31(1)(c),

the Authority must give a warning notice to the person concerned.

(2) If, having considered any representations, the Authority decides to—

(a)make the direction; or

(b)remove the issuer from the register of issuers,

the Authority must give that person a decision notice.

(3) If the Authority decides not to—

(a)make a direction; or

(b)remove the issuer from the register of issuers,

it must give that person written notice of its decision.

(4) If the Authority decides to—

(a)make a direction; or

(b)remove the issuer from the register of issuers,

the person concerned may refer the matter to the Tribunal.

Powers of the court

33.  (1)  If, on the application of the Authority, the court is satisfied that—

(a)there is a reasonable likelihood that a person will contravene a requirement imposed on it by or under these Regulations; or

(b)a person has contravened any such requirement and there is a reasonable likelihood that the contravention will continue or be repeated,

the court may make an order restraining (or in Scotland an interdict prohibiting) the contravention.

(2) If, on the application of the Authority, the court is satisfied that—

(a)a person has contravened a requirement imposed on it by or under these Regulations; and

(b)there are steps which could be taken for remedying the contravention;

the court may make an order requiring that person, and any other person who appears to have been knowingly concerned in the contravention, to take such steps as the court may direct to remedy it.

(3) The jurisdiction conferred by this regulation is exercisable by the High Court, the Court of Session and the Northern Ireland High Court.

(4) In paragraph (2), references to remedying a contravention include references to mitigating its effect.

Financial penalties

34.  (1)  The Authority may impose a penalty of such amount as it considers appropriate on a person which has contravened a requirement imposed on it by or under these Regulations.

(2) A penalty imposed under this regulation is payable to the Authority.

(3) The Authority may not take action against a person under this regulation after the end of the period of two years beginning with the first day on which it knew of the contravention unless proceedings against that person, in respect of the contravention, were begun before the end of that period.

(4) For the purposes of paragraph (3)—

(a)the Authority is to be treated as knowing of a contravention if it has information from which the contravention can reasonably be inferred; and

(b)proceedings against a person in respect of a contravention are to be treated as begun when a warning notice is given to it under regulation 35.

35.  (1)  Where the Authority proposes to impose a penalty under regulation 34, it must give the person concerned a warning notice.

(2) The warning notice must state the amount of the proposed penalty and the Authority’s reasons for imposing it.

(3) If, having considered any representations made in response to the warning notice, the Authority decides to impose a penalty under regulation 34, it must without delay give the person concerned a decision notice.

(4) The decision notice must state the amount of the penalty.

(5) If the Authority decides to impose a penalty on a person under regulation 34, that person may refer the matter to the Tribunal.

36.  Sections 210 (statements of policy) and 211 (statements of policy: procedure) of the Act are to apply in respect of the imposition of penalties under these Regulations and the amount of such penalties as they apply in respect of the imposition of penalties under Part 14 of the Act (disciplinary measures) and the amount of penalties under that Part of that Act.

37.  Paragraph 16 (penalties) of Schedule 1 to the Act is to apply for the purposes of these Regulations as it applies for the purposes of the Act but with the following modifications—

(a)in sub-paragraph (1) for “this Act” substitute “the Regulated Covered Bonds Regulations 2008”;

(b)in sub-paragraph (2) for “authorised persons” substitute “issuers (within the meaning given by regulation 1(2) of the Regulated Covered Bond Regulations 2008)”;

(c)omit sub-paragraphs (3) and (13).

Offence of misleading the Authority

38.  (1)  Subsections (1) and (3) of section 398 (misleading the Authority: residual cases) of the Act are to apply in respect of requirements imposed by or under these Regulations as they apply in respect of requirements imposed by or under the Act.

(2) Section 400 (offences by bodies corporate etc) and subsections (2), (3), (5) and (6) of section 401 (proceedings for offences) of the Act are to apply for the purposes of paragraph (1) as they apply for the purposes of the Act.

PART 8THE TRIBUNAL

Functions of the Tribunal

39.  The Tribunal is to have the functions conferred on it by these Regulations.

Hearings and appeals

40.  Part 9 of the Act (hearings and appeals) is to apply for the purposes of these Regulations as it applies for the purposes of the Act.

PART 9MISCELLANEOUS

Notification of the Commission

41.  The Authority must, in such manner and at such times as it may determine, notify the European Commission of—

(a)issuers included in the register of issuers;

(b)regulated covered bonds included in the register of regulated covered bonds; and

(c)the status of the guarantees offered in respect of such bonds.

Guidance

42.  (1)  The Authority may give guidance consisting of such information and advice as it considers appropriate—

(a)with respect to the operation of these Regulations;

(b)with respect to any matters relating to functions of the Authority under these Regulations;

(c)with respect to any other matters about which it appears to the Authority to be desirable to give information or advice.

(2) The Authority must give guidance consisting of information and advice about the quality of an asset pool for the purposes of the requirement specified in regulation 17(2)(d) and the manner in which it will assess the issuer’s and owner’s compliance with that requirement.

(3) Guidance given under paragraph (2) must include information and advice on the factors which the Authority will take into account, such as—

(a)fluctuations in the value of assets and the income from assets;

(b)fluctuations in the value of interest and exchange rates;

(c)geographical concentration and diversification of assets in the asset pool;

(d)the risk of loss if a person fails to perform its obligations, or fails to perform them in a timely manner; and

(e)counterparty credit risk, in particular, in relation to any interest rate, currency or other hedging instruments relating to the asset pool.

(4) Subject to paragraph (5), if the Authority proposes to give guidance under this regulation to issuers or owners generally, or to a class of issuer or owner, subsections (1), (2)(d) and (4) of section 155 of the Act (consultation) apply to the proposed guidance as they apply to proposed rules made under the Act, unless the Authority considers that the delay in complying with them would be prejudicial to the interests of regulated covered bond holders.

(5) Paragraph (4) shall not apply to the first guidance given pursuant to paragraph (2).

(6) The Authority may—

(a)publish its guidance;

(b)offer copies of its published guidance for sale at a reasonable price; and

(c)if it gives guidance in response to a request made by any person, make a reasonable charge for that guidance.

Disclosure of information

43.  (1)  Sections 348 (restrictions on disclosure of confidential information by Authority), 349 (exceptions from section 348) and 352 (offences) of the Act apply to confidential information disclosed under these Regulations as they apply to confidential information under the Act.

(2) In paragraph (1) “confidential information” has the meaning given by section 348 of the Act.

Warning notices and decision notices

44.  Part 26 of the Act (notices) is to apply for the purposes of these Regulations as it applies for the purposes of the Act.

Authority’s exemption from liability in damages

45.  The functions of the Authority under these Regulations are to be treated for the purposes of paragraph 19 (exemption from liability in damages) of Part 4 of Schedule 1 to the Act as functions conferred on the Authority under that Act.

Modifications of primary and secondary legislation

46.  The Schedule (which modifies primary and secondary legislation) has effect.

Dave Watts

Steve McCabe

Two of the Lords Commissioners of Her Majesty’s Treasury

13th February 2008

Regulation 46

SCHEDULEMODIFICATIONS TO PRIMARY AND SECONDARY LEGISLATION

PART 1PRIMARY LEGISLATION

Modification of the Companies Act 1985

1.  Section 196 (payment of debts out of assets subject to floating charge (England and Wales)) of the Companies Act 1985 shall not apply to an owner.

Modifications of the 1986 Act

2.  (1)  Sections 40 (payment of debts out of assets subject to floating charge) and 43 (power to dispose of charged property) of the 1986 Act shall not apply to an owner.

(2) Section 107 of the 1986 Act (distribution of company’s property) shall apply only after payment has been made of the claims of relevant persons.

(3) Section 156 of the 1986 Act (payment of expenses of winding up) shall apply only after payment has been made of the expenses referred to in regulation 29.

(4) Section 175 (preferential debts (general provision)) and 176A (share of assets for unsecured creditors) of the 1986 Act shall not apply to an owner.

(5) Paragraphs 65(1) and 66 of Schedule B1 (distributions) to the 1986 Act shall apply only after payment has been made of the claims of relevant persons.

Modifications of the Act

3.  Section 165 (Authority’s power to require information) of the Act is to apply for the purposes of these Regulations as it applies for the purposes of the Act but with the modification that for references to “an authorised person” there is substituted references to “a person to whom the Regulated Covered Bonds Regulations 2008 apply”.

4.  Section 166 (reports by skilled persons) of the Act is to apply for the purposes of these Regulations as it applies for the purposes of the Act but with the modification that for the reference in subsection (2)(a) to “an authorised person” there is substituted a reference to “a person to whom the Regulated Covered Bond Regulations 2008 apply”.

5.  Paragraph 17 (fees) of Part 3 of Schedule 1 to the Act is to apply for the purposes of these Regulations as it applies for the purposes of the Act, but with the following modifications—

(a)in sub-paragraph (1), omit paragraphs (b) and (c);

(b)for the reference in sub-paragraph (2) to “penalties imposed by it under this Act” there is substituted a reference to “penalties imposed by it under the Regulated Covered Bonds Regulations 2008”; and

(c)omit sub-paragraph (3).

Modification of the 2006 Act

6.  Where an owner is wound up, section 754 of the 2006 Act (priorities where debentures secured by floating charge) shall apply only after payment has been made of the claims of relevant persons.

PART 2SECONDARY LEGISLATION

Modifications of the Insolvency Rules 1986

7.  (1)  Rule 4.181(1) of the Insolvency Rules 1986(19) (debts of insolvent company to rank equally) shall apply only after payment has been made of the claims of relevant persons.

(2) Rules 2.67, 4.218 and 4.219 of the Insolvency Rules 1986 (priority of expenses) shall apply to an owner subject to the provisions of regulation 29.

Modification to the Insolvency (Scotland) Rules 1986

8.  Rule 4.67 of the Insolvency (Scotland) Rules 1986(20) (order of priority of expenses of liquidation) shall apply to an owner subject to the provisions of regulation 29.

Modifications of the 1989 Order

9.  (1)  Article 50 (payment of debts out of assets subject to floating charge) of the 1989 Order shall not apply to an owner.

(2) Where regulation 27 or 28 applies—

(a)article 93 of and paragraphs 66(1) and 67 of Schedule B1 to the 1989 Order (distribution of company’s property) shall apply only after payment has been made of the claims of relevant persons;

(b)article 134 of the 1989 Order (payment of expenses) shall apply only after payment has been made of the expenses referred to in regulation 29; and

(c)articles 149 (preferential debts (general provision)) and 150A (share of assets for unsecured creditors) of the 1989 Order shall not apply.

Modifications of the Insolvency Rules (Northern Ireland) 1991

10.  (1)  Rule 4.190(1) of the Insolvency Rules (Northern Ireland) 1991(21) (debts of insolvent company to rank equally) shall apply only after payment has been made of the claims of relevant persons.

(2) Rules 2.068, 4.228 and 4.229 of the Insolvency Rules (Northern Ireland) 1991 (priority of expenses) shall apply to an owner subject to the provisions of regulation 29.

Modification of the Cross-Border Insolvency Regulations 2006

11.  The Cross-Border Insolvency Regulations 2006(22) shall not apply to an owner.

Modification of the Cross-Border Insolvency (Northern Ireland) Regulations 2007

12.  The Cross-Border Insolvency (Northern Ireland) Regulations 2007(23) shall not apply to an owner.

EXPLANATORY NOTE

(This note is not part of the Regulations)

These Regulations provide a new legislative framework for covered bonds in the UK. The Regulations implement Article 22(4) of Council Directive 85/611/EC of 20 December 1985 on the co-ordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (“UCITS Directive”) (as inserted by Directive 2001/108/EC of 21 January 2002); Article 22(4) of Council Directive 92/49/EC of 18 June 1992 on the co-ordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance (“Third Non-Life Directive”); and Article 24(4) of Directive 2002/83/EC of the European Parliament and of the Council concerning life assurance (“Consolidated Life Directive”). The relevant requirements of the UCITS Directive, the Third Non-Life Directive and the Consolidated Life Directive are in the same terms. These Regulations also implement paragraph 68 of Annex 6 to Directive 2006/48/EEC of the European Parliament and of the Council relating to the taking up and pursuit of the business of credit institutions (“the Banking Consolidation Directive”).

A covered bond is a class of corporate bond, issued by credit institutions and backed by certain assets, normally mortgages or public sector loans. Interest and repayments of principal is payable out of ring-fenced assets (“an asset pool”) backing the bond. Covered bonds that comply with the UCITS Directive (and equivalent requirements in the other Directives referred to above) benefit from higher prudential investment limits under the UCITS Directive and lower risk weights under the Banking Consolidation Directive.

The Regulations establish a new regime supervised by the Financial Services Authority (the Authority) and take account of UK practice in relation to covered bonds. In the UK, covered bonds are issued by credit institutions. The issuer lends the sums derived from the bonds to a separate legal entity owned by another person (“the owner”). The owner uses the sums to purchase property which it holds in an asset pool. The owner agrees to guarantee the issuer’s obligations to the covered bond holders. The loan is repaid once the bond holders’ claims to the principal and accrued interest have been met.

Part 1 of the Regulations provides definitions. Part 2 sets out the functions of the Authority and provides for it to have regard to certain considerations, including the need to preserve investor confidence in regulated covered bonds in the UK. Part 3 requires the Authority to maintain a register of issuers and a register of regulated covered bonds and sets out the registration process. Part 4 imposes requirements on issuers and Part 5 imposes requirements on owners. In particular, the issuer and the owner must make arrangements for the maintenance and administration of the asset pool so that the claims of bond holders and other specified parties may be met. Part 6 establishes that regulated covered bond holders and other specified persons must be paid in priority to all other creditors, after the payment of expenses of the receivership or winding up etc. Part 6 also provides for certain expenses incurred by a receiver or liquidator etc. to rank above the payment of all other expenses. Part 7 sets out the enforcement powers of the Authority and the Courts. Part 8 confers functions on the Financial Services and Markets Act Tribunal and Part 9 (and Schedule 1) contain provision for notification of the European Commission, guidance to be issued by the Authority and various modifications of primary and secondary legislation.

A Transposition Table setting out how the elements of the above Directives will be transposed into UK law is available from the Financial Stability and Regulatory Policy Team, HM Treasury, 1 Horseguards Road, London, SW1A 2HQ. The Transposition Table is also available on HM Treasury’s website (www.hm-treasury.gov.uk).

A Regulatory Impact Assessment has been produced for this instrument and has been deposited in both Houses of Parliament. It is available either at the above address or on HM Treasury’s website.

(1)

1972 c.68; section 2(2) was amended by the Legislative and Regulatory Reform Act 2006 (c. 51).

(8)

O.J. No L 771, 30.6.2006, p.1.

(9)

O.J. No. 160, 30.6.2000, p.1.

(10)

1985 c.6.

(11)

O.J. No L 375, 31.12.85, p.3.

(12)

1996 c.52.

(16)

S.I. 2001/544 as amended by the Financial Services and Markets Act 2000 (Regulated Activities) (Amendment) Order 2002 (S.I. 2002/682).

(17)

2000 c.12.

(18)

1988 c.36.

(21)

S R. 1991 No.364.

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